The Lesson of George Floyd: It’s Time to Put the Minneapolis Police Department Under State Control

Minneapolis has a police problem.  It has a race problem.  We have known both of those facts for
years.  The question is the cause and what are the possible solutions?  There is no simple answer but one is that Minneapolis police department needs to have a major cultural change that can only be effected by either state takeover of it or by merging it with or having it taken over by the Hennepin County Sheriff or placed under receivership and operation with another jurisdiction.
Minneapolis has long had a problem with its police department.  Muckraker Lincoln Steffens in his 1904 classic the Shame of the Cities and in his 1903 McClure Magazine cover story highlighted the corruption and problems in the Minneapolis Police Department that included graft, corruption, and a host of other issues.  There is a problem in controlling the police that go back over a century.
There is also a well-known racial problem.  It is one of the most racially segregated cities in the nation with terrible education, health care, incarceration, income, and employment disparities.  Combine them together and they yield a racial problem with policing, especially including excessive use of force.
Twenty years ago I taught a class on police civil and criminal liability law.  Minneapolis was a living laboratory in what not to do.  The City made constant pay outs to victims and families and across two country prosecutors that included now Senator Amy Klobuchar and Mike Freeman little had been done to hold officers criminally liable.  There are lots of reasons for this.  Some are political and not wanting to take on the police or wanting to appear tough on crime.  Others are the fact that the law on police criminal (and civil) liability favor them over victims.  As a result, Minneapolis is perhaps the most notorious example of police racial violence against people of color.
What do we do now?  Addressing the underlying racial and economic disparities in income, education, and health care are needed but they will not change police behavior.  There is a persistent cultural problem with Minneapolis police practice that needs to be addressed.
Some had hoped that Monell v. Department of Social Services, 436 U.S. 658 (1978) would provide an answer.  The Monell decision allowed individuals to sue under 42 U.S. Code § 1983 for civil damages.  These §1983 suits, if won, would require cities to pay civil damages for abuses of constitutional rights.  If cities had to keep paying out then maybe they would have an incentive to force changes in police practices or training.  Great theory except it did not work, including in Minneapolis where despite millions of dollars paid out training and use of force practices have not changed.
Others blame the police unions. It is not so much the unions as it is the psychology of the “thin blue line” where in a view of us versus them, police are hesitant to take action against or buck other police officers.  This is just the most extreme version of no one like a snitch or fink.
Maybe the fault is with the public.   Generally suspects and defendants  do not garner much sympathy from the public.  Racism may be a factor when often it is white police interacting with people of color.  Of course the exception in Minneapolis was when a Black police officer shot a white woman and there was a rush to convict him.  Many felt good about themselves here indicating they could now support a victim over the police.
There is also a culture of complacency. By that, Minneapolis has a reputation of being one of the most liberal cities in America.  Mayors, city council members, and voters can say all the right things about race but at the end of the day the solutions fall from short of anything beyond rhetoric.
Finally, mayors in Minneapolis are weak.  They cannot do much.  The city is effectively a one-party town where the establishment is not going to challenge anyone in power for fear it will hurt their career.
Now firing four police officers and calling for them to be charged with murder will placate some but it still will not change the culture and administration of policing.  What should be done?
It is clear, if Steffens was correct, that the police have been a problem for Minneapolis for more than100 years.  The City has shown it is incapable of reforming or correcting the problem.  It is doubtful people of color have much confidence in the City of Minneapolis to fix the problem.  Someone needs to step in.
Solution one is a takeover of the Minneapolis police department by the State of Minnesota.  This probably would require legislation altering or preempting home rule authority of the City.  Across the country states such as New Jersey have employed similar solutions when it comes to education.  Maybe the State of Minnesota putting the police department under its control would be an option.
Solution two is disbanding the police department entirely and letting the Hennepin County Sheriff perform public safety functions in Minneapolis.  A variation of that is merging the Minneapolis police department into the sheriff’s office or putting the former under some type of receivership with another jurisdiction.  Perhaps this what should have been the remedial basis of a previous civil rights law suit.
Overall, continuing to believe that the City of Minneapolis can administer and reform its police in a racially neutral manner increasingly looks unlikely and a new entity needs to run or provide for the public safety needs there.

On the Basis of Race? Making Sense of the Noor Verdict

Could a reasonable jury based on the facts have concluded that former Minneapolis Police Officer
Mohamed Noor was guilty of  a third-degree murder  and second-degree  manslaughter, or can the verdicts only be explained on the basis of race?  This is the question still being debated more than a week after a jury rendered its verdict. The question of how race factored into this decision or, more structurally, a variety of actions surrounding the Minneapolis police department and government make it difficult to render a clean answer.  However, to many, even if facially neutral, it is hard to account for what has happened unless race is considered.

As many who study policing can attest, the law favors them when it comes to the use of force.  Constitutionally, the standard of “objective reasonableness” in terms of whether an officer feared for his life or that of others is a high bar to overcome to find  police criminally liable for use of force.  Jurors are loath to second-guess police use of force, and often the victim of the force is someone accused or guilty of a crime.  A racially neutral argument is that few police are found guilty of use of excessive force is that the laws favors them and they used force appropriately.

A less than racially-neutral argument asserts that the reason why so few officers are charged and found guilty is because of race.  It is both the race of the officer (generally white) and the race of the victim (generally a person of color).  The racism is not necessarily individual and intentional, but it could also be institutional or societal. By that, the racism is not explicit or conscious, but woven into the fabric of our institutions, law, and society. Use of force by white police officers against people of color tells us something about whose lives matter in our society.

The Mohamad Noor trial was complicated. Three charges were brought against him, with convictions on two of them for third-degree murder  and second-degree  manslaughter. According to the judge’s instructions, a jury could find Noor guilty of third-degree murder if it concluded that
Noor caused (Ruszczyk’s) Damond’s death “by perpetuating an act eminently dangerous to others and evincing a depraved mind” without regard for life but also without intent to kill and was committed in a “reckless or wanton” manner understanding that someone may be killed.

For a second-degree manslaughter conviction, jurors needed to conclude that Noor demonstrated “culpable negligence,” that he was reckless, and created an “unreasonable risk” and knowingly took the chance of causing a death or great bodily harm.

Could a reasonable jury have concluded the facts supported these charges?  Perhaps so and from a racially-neutral perspective, the evidence was significant to overcome the high constitutional bar.

But too many other factors create problems for this case, making it look like the prosecution, conviction, and City reaction were all on the basis of race.  This is the first conviction of an officer for murder in Hennepin County if not Minnesota.  Contrary to other recent high profile cases such as the trial of Jeronimo Yanez (a Latino police officer) who was not convicted in the shooting of Philando Castile (an African-American), this was a person of color charged and convicted of killing a white female.

Second, the City of Minneapolis quickly settled the civil suit against them for a record $20,000,000 payout.  But on same day the Minneapolis City Council rejected settling a far less than rumored $100,000 amount arising out of the shooting of Jamar Clark (African-American) by a white police officer in 2015.  This action led federal judge Michael Davis to order the City to court to explain their behavior.  Third, after the Noor verdict, Minneapolis police officials called for a re-examination of their procedures.

It is possible all of the above could be explained neutrally and not on the basis of race. But for many, especially in the Somali community, while similar reactions or responses did not occur when it involved white officers and persons of color as victims.  Over the years there have been many allegations of police brutality but little call for reform until now.  Perhaps this is the privilege of being white and why black lives appear not to matter.

The Mohamad Noor Trial and Police Use of Force–What the Law Says

As the trial of Minneapolis police officer Mohamad Noor for alleged murder and manslaughter of

Justine Ruszczyk begins on April 1, there will be a lot of people who have already made their decisions regarding his guilt or innocence. Even once the verdict is in there will be second guessing, even though except for the jury, none of us will have full access to all the evidence.  This is especially true in light of the presiding judge’s decision to limit public viewing of some of the more graphic material.

The Noor trial is unusual in many ways.  Rarely are officers charged with murder for use of force in line of duty.   Race is unfortunately almost always a factor in police shootings, but generally it is a white officer accused of using excessive force against a person of color.  Here we see a reversal of race, leaving some to argue that the charging of the officer is about this, or Noor’s religion.  Hopefully race, religion, or prejudice will not be factors in this trial and that instead the verdict is rendered on the basis of the facts and the law.  The prosecution will have to prove beyond a reasonable doubt that Noor committed murder or manslaughter, but in doing that it will also have to address the legal protections that allow police to use force as an affirmative defense.

So what is the law on the police use of force?

 Police are legally empowered to use force, including deadly force, if they believe their own safety or the public’s safety is immediately and seriously threatened. Historically, police who use excessive force could be charged criminally or sued under state tort law. Neither option works well. Sovereign immunity bars many suits, prosecutors rarely charge officers, and juries are seldom sympathetic to victims, especially if they are criminals.

The basic legal framework for holding police responsible for excessive use of force was established in 1978 with Monell v. Department of Social Services. In Monell, the Supreme Court ruled that municipalities can be held responsible for police actions when and if plaintiffs (like victims of police brutality, for example) can show that those actions were the product of official police policy or part of a police department’s culture, customs and practices.

The problem is, this is very hard to do – and therefore it's tough to hold police accountable for misconduct. To hold police civilly responsible for civil rights abuses three elements must be proved. First, the person filing a complaint must be a person protected under the statute. Second, the defendant (police officer) must be acting under the color of the law. Third, the alleged violation must seriously infringe on a constitutional right. Victims also have to show that police acted with deliberate indifference, which is a higher legal standard of proof than negligence. This is a very high bar

When it comes to use of force, police have significant latitude. Not all uses of force are illegal, nor are all injuries actionable (of course, this make sense, police sometimes do need to use force for good reasons).

The Supreme Court has issued two major decisions that explain when police use of force is excessive. In Tennessee v. Garner the Supreme Court ruled that the use of excessive deadly force is a Fourth Amendment violation, that is, a kind of illegal search and seizure. To determine police liability, one must balance the citizen's interest versus the government’s. The citizen’s interest is substantial, of course: not to die. To overcome that interest, police must show that the officer believed that the suspect poses an immediate threat of serious physical harm to the officer or others.
 In Graham v. Connor the Supreme Court created an even softer standard for the excessive use of non-deadly force, based on whether the use of force would be justified from the perspective of a reasonable officer with 20/20 hindsight (Use of force has to be “objectively reasonable”).  Garner and Connor provide constitutional cover or an affirmative defense for police officers to use force.  Charge law enforcement officials with use of force–criminally or civilly–and these cases along with state law provide protection to use such tactics to enforce the law.

 Excessive use of force cases are hard to win for all the reasons criminal and state tort liability cases are. Moreover, public fears of crime complicate matters.  So does racism, especially in situations with mostly white officers – and often mostly white prosecutors, judges and juries – and people of color as victims. But another reason why these cases are hard to win is that the law determines excessive force from the perspective of the police officer, not the victim. Few juries are willing or able to second-guess a cop.

As the Noor trial progresses, this law on police use of force should be kept in mind.

PS:  For seven years I taught police liability in a criminal justice program.

Responding to Police Use of Force–What the Law Says and What are the Alternatives

Hennepin County Attorney Mike Freeman was correct in not indicting the officers who killed

Thurman Blevins.  The reason is simple–he could never have secured a conviction because the law is on the side of the police.  This point has largely been missed in the debates regarding policy use of force.  But having said that, also largely missing from the debate is a discussion on police alternatives to violence, how to de-escalate conflict, and where race fits into how law enforcement officials approach tense situations where personal or public safety issues are present.  If  Freeman and others want to take a leadership position on this issue, they should explore these questions.
Let’s start with the law.  Police are legally empowered to use force, including deadly force, if they believe their own safety or the public’s safety is immediately and seriously threatened. Historically, police who use excessive force could be charged criminally or sued under state tort law. Neither option works well. Sovereign immunity bars many suits, prosecutors rarely charge officers, and juries are seldom sympathetic to victims, especially if they are criminals.
The basic legal framework for holding police responsible for excessive use of force was established in 1978 with Monell v. Department of Social Services. In Monell, the Supreme Court ruled that municipalities can be held responsible for police actions when and if plaintiffs (like victims of police brutality, for example) can show that those actions were the product of official police policy or part of a police department’s culture, customs and practices.
The problem is, this is very hard to do – and therefore it's tough to hold police accountable for misconduct. To hold police civilly responsible for civil rights abuses three elements must be proved. First, the person filing a complaint must be a person protected under the statute. Second, the defendant (police officer) must be acting under the color of the law. Third, the alleged violation must seriously infringe on a constitutional right. Victims also have to show that police acted with deliberate indifference, which is a higher legal standard of proof than negligence. This is a very high bar.
And it gets worse. When it comes to use of force, police have significant latitude. Not all uses of force are illegal, nor are all injuries actionable (of course, this make sense, police sometimes do need to use force for good reasons).
The Supreme Court has issued two major decisions that explain when police use of force is excessive. In Tennessee v. Garner the Supreme Court ruled that the use of excessive deadly force is a Fourth Amendment violation, that is, a kind of illegal search and seizure. To determine police liability, one must balance the citizen's interest versus the government’s. The citizen’s interest is substantial, of course: not to die. To overcome that interest, police must show that the officer believed that the suspect poses an immediate threat of serious physical harm to the officer or others.
In Graham v. Connor the Supreme Court created an even softer standard for the excessive use of non-deadly force, based on whether the use of force would be justified from the perspective of a reasonable officer with 20/20 hindsight.  Garner and Connor provide constitutional cover or an affirmative defense for police officers to use force.  Charge law enforcement officials with use of force–criminally or civilly–and these cases along with state law provide protection to use such tactics to enforce the law.
Excessive use of force cases are hard to win for all the reasons criminal and state tort liability cases are. Moreover, public fears of crime complicate matters.  So does racism, especially in situations with mostly white officers – and often mostly white prosecutors, judges and juries – and people of color as victims. But another reason why these cases are hard to win is that the law determines excessive force from the perspective of the police officer, not the victim. Few juries are willing or able to second-guess a cop.  Given the law, there was little chance Freeman could have secured a conviction. 
Think about it–if the officer who killed Philando Castile could not be convicted by a racially diverse jury, what chance was there to secure a conviction here in a trial involving police use of force against Blevins.  Like it or not, this is the law.  Perhaps it should be changed, regardless of the race of the victim, and that is a reasonable debate that should occur.
But there is also another couple of debates that should take place.  Policing is not simply anymore about the direct use of brute force.  It is about conflict management and how to de-escalate tense situations. Policing now is supposed to be more about interpersonal relations than it is about ordering people about.  This is was community-orientated policy and problem-orientated policing is about.  Watching the Blevins video one should be struck by how bad the police managed the situation.  Yelling, swearing, and threatening someone is not the smartest route to de-escalating a tense situation and getting someone to surrender, especially at a time when people of color have a heightened fear in terms of their interaction with police.
Regardless of what the law empowers law enforcement officials to do, what training do they  have in Minneapolis to encourage them to seek and pursue alternative de-escalation strategies?  Moreover, and this is one place where race comes it, do the police use one set of strategies with Caucasians and another with people of color, or is one technique used in a racially arbitrary way?  These are important questions that need to be studied and examined in Minneapolis.
In the end, protests are fine and politicians’ speeches make good headlines. But a more constructive role or step for Mike Freeman, elected officials, community activists, and even the police if they really want to  address law enforcement  use of force involves understanding the current law and asking whether it should be changed and what are the alternatives to current policing practices that are not racially arbitrary.


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Note: for nearly seven years I taught criminal justice courses, including a course on policy civil and criminal liability.  I also edited the Encyclopedia of American Law and Criminal Justice.

Prosecuting Police Misconduct--Why it will be hard to get a conviction in the Castile case

Note:  For seven years I taught criminal justice classes, including a course that included examination of police  civil and criminal liability.  I also discuss police use of force in the second edition of my civil rights/liberties case book to be published by West Academic this summer.

On May 30, jury selection in the case of police officer Jeronimo Yanez begins.  He is charged with the shooting of Philando Castile.  Many think it will be a slam dunk to get a conviction–after all, there is a tape of the incident that appears to show an unwarranted excessive use of force.  Yet the odds are that it will be hard to win this case.

Why? Part of the cause is that laws on the use of force favor the police, making it difficult to win cases.

Police are legally empowered to use force, including deadly force, if they believe their own safety or the public’s safety is immediately and seriously threatened. Historically, police who use excessive force could be charged criminally or sued under state tort law. Neither option works well. Sovereign immunity bars many suits, prosecutors rarely charge officers, and juries are seldom sympathetic to victims, especially if they are criminals or accused or criminal acts.

The basic legal framework for holding police responsible for excessive use of force was established in 1978 with Monell v. Department of Social Services. In Monell, the Supreme Court ruled that municipalities can be held responsible for police actions when and if plaintiffs (like victims of police brutality, for example) can show that those actions were the product of official police policy or part of a police department’s culture, customs and practices.

The problem is, this is very hard to do – and therefore it’s tough to hold police accountable for misconduct. To hold police civilly responsible for civil rights abuses three elements must be proved. First, the person filing a complaint must be a person protected under the statute. Second, the defendant (police officer) must be acting under the color of the law. Third, the alleged violation must seriously infringe on a constitutional right. Victims also have to show that police acted with deliberate indifference, which is a higher legal standard of proof than negligence. This is a very high bar.

And it gets worse. When it comes to use of force, police have significant latitude. Not all uses of force are illegal, nor are all injuries actionable (of course, this make sense, police sometimes do need to use force for good reasons).

The Supreme Court has issued two major decisions that explain when police use of force is excessive. In Tennessee v. Garner the Supreme Court ruled that the use of excessive deadly force is a Fourth Amendment violation, that is, a kind of illegal search and seizure. To determine police liability, one must balance the citizen’s interest versus the government’s. The citizen’s interest is substantial, of course: not to die. To overcome that interest, police must show that the officer believed that the suspect poses an immediate threat of serious physical harm to the officer or others.

In Graham v. Connor the Supreme Court created an even softer standard for the excessive use of non-deadly force, based on whether the use of force would be justified from the perspective of a reasonable officer with 20/20 hindsight.

Excessive use of force cases are hard to win for all the reasons criminal and state tort liability cases are. Moreover, public fears of crime complicate matters.  So does racism, especially in situations with mostly white officers – and often mostly white prosecutors, judges and juries – and people of color as victims.   Much of this may not apply in the  Castile case.  But another reason why these cases are hard to win is that the law determines excessive force from the perspective of the police officer, not the victim. Few juries are willing or able to second-guess a cop.

While the above framework applies to civil responsibility, it overshadows criminal liability for police conduct.  Effectively a prosecutor will need to demonstrate that a police officer–here Officer Yanez–acted outside the scope of his authority when he used force.  Then the prosecutor will need to prove the elements of the crime second-degree manslaughter and two felony-level counts of dangerous discharge of a firearm–beyond a reasonable doubt.  Taken together, this is a very high bar
for prosecutors to overcome.